The Law Society supports the development of an appointments system, which enhances the integrity and independence of the judiciary and continues to inspire public confidence. However, the current system is in need of reform.
The establishment of the Judicial Appointments Commission (JAC) in 2006 was an opportunity to sweep away the old and bring in the new – an opportunity that has not yet been fully realised.
The constitution of the JAC, as a non-departmental public body, fails to ensure that the appointments process operates at arm’s length from the executive, as the JAC remains under the sponsorship of the Ministry of Justice (MoJ).
The Lord Chancellor remains accountable to Parliament for the activities and performance of the JAC and is responsible for its strategy, the amount of grant-in-aid paid to the organisation, and the terms, conditions and appointment of all JAC staff. It is also of some concern that a substantial proportion of all JAC staff (82 per cent) are on secondment from the MoJ or other branches of the Government.
In order to be genuinely independent, the JAC needs to recruit new people from outside the civil service, who have fresh perspectives and different attitudes.
Solicitors have long been concerned by the influence of the judiciary in the appointment process and the perception of an old boys’ network. Indeed, this was one of the main reasons behind the creation of the JAC.
It is obviously right that the judiciary should play a part in the process; however, it is of concern that, out of 15 JAC commissioners, five must be judicial members and three others are current or former judges.
Furthermore, the process adopted by the JAC of seeking references before deciding who should be interviewed for appointments, rather than after the interview, has tended to give disproportionate weight to the views of the judges in the selection process for full-time appointments.
As long as judicial support is an important factor in judicial selection, a large proportion of very able lawyers who do not have work or social contacts with judges will be at a disadvantage, including those who historically have been less likely to join the judiciary, such as women, candidates from black and minority ethnic backgrounds and (especially for recorders and senior appointments) solicitors. The Law Society is concerned that the current system means that no single body retains overall responsibility for judicial appointments, which results in lack of accountability, inconsistent policies and an overly complex system.
For example, responsibility for the setting of non-statutory eligibility criteria is not delineated clearly between the JAC, the MoJ and the courts service, and this confusion has undermined our attempts to pursue concerns about inappropriate criteria that effectively ruled out solicitors from applying for specialist circuit judge appointments.
The efficiency and effectiveness of the judicial appointments system is also being undermined by the unacceptable length of the process. Some appointments can take 22 months and, although this is not the average, it will typically take several months before new judges can take up their duties. This presents specific problems for solicitors, who will be discouraged from indicating they have an interest in judicial appointment because of the uncertainty this creates over their future within their partnerships.
The recent green paper ‘Governance of Britain: Judicial Appointments’ provides an opportunity for more fundamental reform. We believe the JAC should be reconstituted as a completely separate ‘non-ministerial department’ that is accountable to Parliament rather than the MoJ.
Ultimately, this would facilitate the JAC becoming the single accountable body for judicial appointments and the removal of the executive entirely from judicial appointments, in accordance with the principle of the separation of powers.